Category: Articles

The Australian Charities and Not-for-profits Commission Act 2012 (Cth) commenced on 3 December 2012, delivering Australia a federal regulator for not-for-profits, the Australian Charities and Not-for-profits Commission (‘ACNC’). The ACNC is expected to effect a ‘fundamental change’ from the current system where the Australian Taxation Office, as the ‘default Commonwealth regulator’, has been ‘unable to take action commensurate to the circumstances being addressed’. However, the ACNC’s achievement of its regulatory goals, especially by means of proportional enforcement action, may be stunted by regulatory overlap with the Commissioner of Taxation. This overlap is primarily engendered by additional tax endorsement requirements for charities to access tax concessions, such as income tax exemption. In particular, the extension of endorsement special conditions under the Tax Laws Amendment (2013 Measures No 2) Act 2013 (Cth) raises the possibility that charities may face ‘fierce extremes’ between milder, more nuanced, ACNC compliance action and revocation of income tax endorsement by the Commissioner of Taxation.

This paper concerns the 2011 Australian Government’s then proposed changes to the transfer pricing rules, referred to as the stage one amendments, and the consultation process to provide interested parties with an opportunity to comment. The paper covers the external submissions received, with a focus on the dominant issues raised in the submissions regarding the planned changes to the transfer pricing rules. Also examined is the extent to which the issues advanced by the interested parties were included in the Bill that was tabled in parliament for debate, and finally enacted in September 2012 as Tax Laws Amendment (Cross-Border Transfer Pricing) Act (No. 1) 2012 (Cth). Using the methodology of grounded theory, we analyse 37 public submissions from the stage one consultations to ground a theory and explain the submitters’ issues of concern. The key concerns about the proposed amendments are: opposition to any retrospective powers; requests protection for taxpayers from penalties arising from a transfer pricing amendment; resistance to assigning ‘separate taxing powers’ to Australian tax treaties; and a clear aversion to any ‘discrimination’ against foreign related parties that are resident of a country that has a tax treaty with Australia. Transfer pricing literature is used to validate the results. While there were consistent patterns of concern in the submissions from the interested parties, the adoption of their requests was low in the stage one amendments.

For the first time in New Zealand, this article investigates the role that the New Zealand Bill of Rights Act 1990 has played in New Zealand taxation case law. To determine this, the article analyses the interaction of the New Zealand Commissioner of Inland Revenue’s powers of search and seizure under ss 16 and 17 of the Tax Administration Act 1994 and s 21 of the Bill of Rights Act 1990. The article demonstrates that the absence of constitutional rights in New Zealand, constitutional entrenchment and the inclusion of s 4 in the Bill of Rights Act 1990 have accounted for differing outcomes in the courts.